Unfortunately, the recent reports of Buffalo police officers interfering with citizens photographing and recording them in public and ordering them to delete those images is all too common an occurrence throughout this country.
What is particularly disappointing is that it continues to occur in my hometown.
While it might have been appropriate for the officers involved to ask those citizens to step back a few feet, if the officers reasonably believed they were too close, it was a clear violation of the photographer’s constitutional rights to be ordered to stop recording and delete his images under threat of arrest.
As stated in a decision by the U.S. 1st Circuit Court of Appeals, “A police officer is not a law unto himself; he cannot give an order that has no colorable legal basis and then arrest a person who defies it.” Threatening to do so is just as egregious.
Ever since 9/11, there has been a heightened awareness of anyone taking pictures or recording events in public. This issue has only been exacerbated by the widespread proliferation of cellphone cameras and the ability of anyone to post photos and recordings on the Internet. Many in law enforcement still have the erroneous belief that they can order people to stop taking pictures or recording in public.
Interference and, in some cases, arrests stemming from those actions have led to a number of court cases resulting in six-figure settlements, new policies and procedures and sometimes serious disciplinary actions against the officers involved.
In one such case that cost the City of Boston $172,000, the court stated: “A citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital and well-established liberty safeguarded by the First Amendment. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’ ” And that is exactly what was happening in the two most recent incidents reported in the local media.
The U.S. Department of Justice has also taken note of these incidents and supports the position that the public and members of the media have a “coextensive” First Amendment right to record police officers performing their official duties in public.
The Department of Justice also stated: “The derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers and conflicts with the liberties that the Constitution was designed to uphold.”
In another case that cost the taxpayers of Baltimore $250,000, the Department of Justice also said in no uncertain terms that “under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.”
In any free country, the balance between providing police protection with integrity and overzealous enforcement is delicate. It is one thing for officers to act when there is reasonable suspicion; it is quite another to abuse that discretion by chilling free speech and creating a climate of fear and distrust under the pretext of safety and security.
In a time of technology and terrorism, citizens and visual journalists throughout the world have risked and in some cases given their lives to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect at home.
It is therefore incumbent upon the Buffalo Police Department to do a much better job of providing proper guidelines and training for its officers regarding these rights. To that end, the National Press Photographers Association renews its offer of assistance, as we have to many other law enforcement agencies around the country, with the hope of avoiding similar situations.
Mickey H. Osterreicher is general counsel for the National Press Photographers Association, counsel to the law firm of Hiscock & Barclay and a member of the International Law Enforcement Educators and Trainers Association. He has been a uniformed reserve deputy with the Erie County Sheriff’s Department since 1976 and was a photojournalist in print and broadcast news for almost 40 years.